Harrison and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 1570

Harrison and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1570 (23 May 2023)

Division:GENERAL DIVISION

File Number:          2023/1330

Re:Stephen Harrison  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member David James

Senior Member Rebecca Bellamy

Date: 23 May 2023

Place:Brisbane

The decision under review is affirmed.

.......................[SGD]......................  ………………[SGD]…………….. Senior Member R Bellamy  Senior Member D James     

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Skilled – Independent (Class BN) (Subclass 136) visa - where Applicant does not pass the character test – whether there is not another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – frequent offending including serious violent offences – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185.
Minister for Home Affairs v Buadromo [2018] FCAFC 151

SECONDARY MATERIAL

Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member D James
Senior Member R Bellamy

23 May 2023

1. The Applicant is a citizen of the United Kingdom whose visa was cancelled in July 2022 under section 501(3)(a) of the Migration Act 1958 (Cth) (“the Act”) because he was serving a sentence of imprisonment and he had been sentenced to a term of imprisonment of 12 months or more.

2. Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if:

   ·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and

   ·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

3. Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In December 2021, the Applicant was sentenced to imprisonment for two years. Accordingly, he does not pass the character test. His visa was cancelled in July 2022.

4. Under s 501CA(4) of the Act the cancellation can be revoked if the person was invited to make written representations about revocation of the cancellation, they made those representations, and the Minister is satisfied:

   (i)that the person passes the character test (as defined by section 501); or

   (ii)that there is another reason why the original decision should be revoked.

5. The Applicant did make written representations and it is clear that he does not pass the character test. In February 2023 the Respondent decided not to revoke the cancellation. In March 2023 the Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.

6. If the Tribunal decides there is “another reason” why the original decision should be revoked, the reviewable decision must be set aside and the cancellation of the Applicant’s visa must be revoked.[1] In our determination of whether there is “another reason”, we are bound by s499(2A) of the Act to apply Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”).

   [1]     Minister for Home Affairs v Buadromo [2018] FCAFC 151.

7. This matter was heard on 9 May 2023. The Applicant gave evidence, and the Tribunal received written evidence filed by the parties, listed in the attached exhibit list, marked “Annexure A”.

8. The Applicant struggles to read, and he did not have legal representation or anyone assisting him. The Tribunal is satisfied that he understood the nature of the proceedings and he was able to meaningfully participate in the hearing. We will deliver a simplified, summarised account of the reasons for our decision earlier today. These written reasons are more detailed than the reasons given orally.

   Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

9. For the purposes of deciding whether to or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they are relevant to this matter, may be briefly stated as follows:

   ·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia. Being able to remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   ·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in, Australia.

   ·The Australian community expects that the Australian Government can and should cancel their visas if they engaged in conduct that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

   ·Australia will generally afford a higher level of tolerance to non­citizens who have lived in the Australian community for most of their life or from a very young age, particularly from their formative years.

   ·Decision-makers must take into account the primary and other considerations relevant to the individual case.

10. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

11. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)strength, nature and duration of ties to Australia;

    (4)best interests of minor children in Australia; and

    (5)expectations of the Australian community.

12. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)impact on Australian business interests.

13. Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

14. The Applicant was born in April 1995. He came to Australian with his mother and step-father on 26 July 2007 when he was 12 years old on a Skilled – Independent (Class BN) (Subclass 136) visa (“visa”).

15. Between 2009 and 2011, the Applicant committed offences which were dealt with in the Children’s Court in Queensland without a conviction being recorded. The current state of the law is that offences that were dealt with in the Children’s Court in Queensland without a conviction being recorded cannot be taken into account when applying s501CA(4) of the Act. That is because of the recent decision in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23[2] (“Thornton”). Accordingly, as far as the Tribunal is concerned, the Applicant’s juvenile offending did not occur.        

    [2] Which is the subject of an appeal to the High Court, special leave having been granted in September 2022.

16. It appears that the Applicant stayed out of trouble between 2012 and 2016, although according to him he started using marijuana in 2013. He used it daily and his use escalated over time until he stopped in 2020.

17. From 2017 to 2021, the Applicant committed around 50 offences. He committed three more in late 2022 in immigration detention after his visa was cancelled. His offending is mostly, if not all, drug related and includes possession of drugs and drug related paraphernalia, drug supply, entering premises to commit an offence, property and dishonesty offences, unlawful possession of weapons, assault and going armed to cause fear. He also engaged in behaviour that constitutes family violence, and protection orders were made against him. Having briefly summarised his offending, we will focus on the more serious offending and some matters that relate to the risk of harm to the community from further offending.

18. On 24 May 2017 the police searched the Applicant’s home and found cannabis, scissors, bongs, a grinder, a set of scales, around 450g of cannabis (in a shed which he pointed them to) plus a smaller amount, and $1750 in cash. The Applicant told the police the cannabis was for personal use and that he had been selling to four or five friends for the last three to four months. In the hearing he estimated that he had been selling for around two years and he had around 10 customers. He attributed the discrepancy in his two accounts to poor memory. He was subsequently convicted of supplying dangerous drugs, possession of dangerous drugs and other offences related to possession of drug paraphernalia.

19. We note here that the circulation dangerous drugs in the community is harmful. While marijuana is seen by some as a harmless drug, it is well known that some users commit crimes to pay for it, it is associated with harmful behaviour such as drug driving, and it is known as a “gateway drug”, i.e. it can lead people to use more serious drugs. The Applicant is, unfortunately, an example of these harms: his behaviour when he was affected by marijuana led to the breakdown of his long-term relationship, he committed drug related crime, and he went on to use methamphetamine. In these written reasons, we refer to the Applicant’s ex-partner as “Ms R” and the child she and the Applicant had together as “Child A”.       

20. According to contemporaneous notes made by the police, in 2018 Ms R reported that in July 2017, when she was seven months pregnant, the Applicant would disappear on drug binges for up to a week at a time. When she was around eight months pregnant, they got into an argument and the Applicant threw a cigarette lighter at her head and pushed her down a small flight of stairs. He convinced her not to attend the hospital or report the matter to police.[3] In the hearing, the Applicant denied that he was ever violent to Ms R, but he conceded that there were a lot of arguments due to his drug use.

    [3] R2, page 147.

21. Child A was born in September 2017.

22. On 8 November 2017, the Applicant verbally and physically abused a council officer who had attended a residence looking for two dogs that had been reported roaming the neighbourhood. The Applicant threw his phone at the victim, then punched him in the face. He later made admissions to the police and expressed remorse, saying he was angry and frustrated because he was trying to stop using cannabis.[4] In the hearing he described the offending as - a council officer had tried to take his dog and he “ended up assaulting him”. In February 2018, the Applicant was convicted of serious assault public officer performing function, causing bodily harm and common assault. He was sentenced to nine months’ imprisonment, wholly suspended for 18 months.

    [4] R2, page 30.

23. On 10 January 2018, the police searched the Applicant’s residence and found cannabis and drug paraphernalia. A police style extendable baton was found in his vehicle. The Applicant claimed he got it from a friend and, as they are easily available online, he did not know it was illegal to have one.[5] He was subsequently convicted of unlawful possession of weapons and some drug offences.     

    [5] R2, page 39.

24. According to contemporaneous police records, Ms R reported to the police that she and the Applicant separated in April 2018 due to his constant drug use and his aggressive behaviour towards her, which included escalating violence without warning. He also threatened to kill himself and get into trouble with police if she left him. After they separated, the Applicant sent her text messages that were threatening and abusive and tried to guilt her into staying with him. She had to change her phone number and deactivate all of her social media accounts due to the Applicant’s threats and abuse.[6] The Applicant admitted to the Tribunal that he sent nasty messages to Ms R and threatened to kill himself. He said “maybe” he blamed her for getting into trouble, but he never threatened to shoot her and he was never violent.

    [6] R2, 147.

25. According to the Applicant, he became depressed after his relationship broke down and he could not see his daughter. He started using methamphetamine. He used it every second day, then every day. He also used MDMA (ecstasy) around once per week, on weekends.

26. On 27 May 2018 the police intercepted the Applicant while he was driving and found a 28cm hunting knife in the vehicle. He said it was for camping but there was not any camping equipment in the vehicle.[7]

    [7] R2, page 51.

27. According to a report made to the police by the Applicant’s mother, on 4 June 2018, the Applicant came to her home, verbally abused her, called her various profanities and said, “I don’t want to kill you, but I want to hurt you.”[8]

    [8] R2, pages 141 to 142.

28. At around 9.00pm on the same day the Applicant was found with prescription drugs that he had not been prescribed and a knife in his vehicle. He told the police he used the knife for protection.[9] He was subsequently convicted in relation to his possession of a knife in May and on this occasion.  

    [9] R2, page 63.

29. At around 11.00pm that same night, according to police records, the Applicant targeted a father and his four sons aged 13, 15, 15 and 17 as they travelled on the Bruce Highway towards Bribie Island. The Applicant’s vehicle was moving erratically, swerving between lanes and not allowing their vehicle to pass. The victims eventually passed and took an exit ramp. The Applicant rammed their vehicle causing such extensive damage to the rear that it was undriveable. The victims contacted the police and waited with their vehicle. The Applicant, who had continued driving, turned around and, with two other passengers, he approached the victims while brandishing a machete in one hand and a small knife in the other. The children threw items at the Applicant trying to get him away from their father. The Applicant then threw the machete at the family. The father retrieved it and the Applicant approached with the small knife. The father chased him, swinging the machete and did some damage to the Applicant’s vehicle.[10]

    [10] R2, page 77.

30. The Applicant was later convicted of going armed so as to cause fear, dangerous operation of a vehicle, and possession of a knife in a public place or a school. In the hearing the Applicant described the episode as a road rage event. He said he targeted the victims’ vehicle because it sped past him, nearly hitting his car. He admitted crashing into the back of the vehicle and fronting up to the victims with at least one other person from his car. He did not recall whether he had a small knife but he recalled that he had a machete and he “waved it around going off”. He claimed two or three grown male New Zealanders from the other vehicle fronted up to him.

31. We note that earlier that day, the Applicant made threats of violence against his own mother, was questioned about having a knife in his vehicle, and then went driving with a machete and a small knife. In the hours after this incident, he threatened his mother in what she described as a “drug induced rage” and damaged her property (see below). He was also caught driving with several drugs in his system (see below). In those circumstances, and where the Applicant admitted to having targeted the victims, we consider that the Applicant was the aggressor and where the police account differs from the Applicant’s we prefer the police account. We are satisfied that, without provocation, the Applicant swerved across lanes to prevent the victims’ vehicle from passing, rammed their vehicle, returned to their vehicle and threatened them with a machete and small knife.        

32. In the hearing the Applicant was asked why he had a machete. He said it was for camping, but he was unable to state how it is used for camping, saying “I don’t know. Anything”. In response to suggestions from the Tribunal, he agreed that he carried weapons around with him because he was involved in the drug scene, he was paranoid, and he had them in case he needed to use them to protect himself. He still, unconvincingly, maintained the machete was for camping. 

33. According to a report made to the police by the Applicant’s mother, around 2.30am on 5 June 2018, the Applicant arrived at her home and verbally abused her, kicked and caused damage to her vehicle, and drove a vehicle into her garage, causing damage to the garage door. She said he had recently been spiralling out of control and become more aggressive due to an increase in his use of dangerous drugs. The police observed that she was heavily distressed and in fear of her safety. She said she was scared of the Applicant and did not want him to return to her home. The police issued a Police Protection Notice, then a Temporary Protection Order was made, and ultimately a Protection Order was made preventing the Applicant from contacting his mother or approaching within 100 metres of her until 28 June 2023.[11] The only aspect of these allegations that the Applicant denied in the hearing was that he damaged his mother’s car.

    [11] R2, pages 143 to 145.

34. At around 3.45am the police came upon the Applicant in a different vehicle with all four tyres blown out and damage to the front panels. He showed signs of drug use and admitted to having used prescription medication. He later tested positive to Amphetamine, Methylamphetamine and several prescription drugs. He was fined for drug driving.[12]

    [12] R2, page 627.

35. The Applicant was subsequently remanded in custody.[13] While he was incarcerated, he used Suboxone (a prescription drug) daily without a prescription. He was also found in possession of prison-made alcohol, and he consumed alcohol.

    [13] R2, page 199.

36. On 23 November 2018, the Applicant was sentenced for the offences he committed in the incident on the highway to 11 months’ imprisonment and nine months’ imprisonment respectively. Additionally, the suspended sentence he had breached by committing further offences was invoked. He was given immediate parole. Accordingly, he was released from custody. He lived with his mother, but he said he was not there much as he often stayed with friends.

37. The Applicant used drugs while on parole. For example, on 14 April 2019 Corrective Services noted that he presented as though he was coming down from a substance, and a urine test yielded a presumptive positive result for amphetamine, methamphetamine, cannabis and “BZO” which appears to refer to Benzodiazepines. The author noted the Applicant’s constant justification of drug taking and his inability to think consequentially. He was directed to engage in psychological intervention and substance abuse counselling. His mother who was also present, and who he was authorised to live with, was unaware that he had been engaging in drug use. The Applicant said he had difficulty saying no to his friends.

1. The Applicant also offended while on parole. The offences included possessing a knife in a public place and break and enter offences.

2. In September 2019 the Applicant was sentenced to community service but he failed to adequately engage and was often uncontactable. By the end of December 2019, he had only completed four hours.[14]    

   [14] R2, pages 165 to 166.

3. According to a police report, on 21 February 2020, the Applicant approached Ms R’s mother and her mother’s boyfriend, abused them, and was described as “shaping up” to them.[15] The Applicant’s account was that he and his mother saw them at the shops across from his mother’s home, and Ms R’s mother was verbally abusive to his mother. He got into an argument with her and he “sort of” shaped up like he was going to fight, but he denied having been verbally abusive.

   [15] R2, page 148.

4. Ms R reported that some days later the Applicant drove past her home several times and yelled out. She thought he could have discovered where she lived by following her mother home on 21 February 2020. The Applicant denied having driven past Ms R’s home. On 23 June 2020, a Protection Order was made that included conditions prohibiting the Applicant from contacting Ms R or being within 100 metres of her until 23 June 2025.[16]

   [16] R2, page 428.

5. In April 2020, after committing some drugs and property offences, the Applicant was again taken into custody.[17] He admitted that he used Suboxone every day during this period.

   [17] R2, page 206.

6. In May 2020, the Applicant was sentenced to imprisonment (with a parole released date in August 2020) for breaching a suspended sentence, breaching a community service order and multiple offences that included fraud, stealing, entering premises to commit an indictable offence, wilful damage and receiving tainted property.

7. In June 2020, the Respondent cancelled the Applicant’s visa on character grounds. With his mother’s assistance, the Applicant submitted a request for revocation of the cancellation and a Personal Circumstances form. In those documents, he indicated that he understood what he had done and expressed remorse. He said he knew how crime affected others and that he was unlikely to re-offend. He expressed an intention to change his life for the better.[18]

   [18] R2, pages 3 and 13.

8. The Respondent revoked the visa cancellation and advised the Applicant in writing in December 2020. In that correspondence he was warned that if he engaged in further criminal or other serious conduct, it could result in his visa being cancelled again on character grounds.[19] He confirmed in the hearing that he understood that warning. 

   [19] G16, page 78.

9. The Applicant barely engaged in rehabilitative programs while on parole and he continued to offend. Corrective Services notes indicate that in March 2021, the Applicant was linked with Lives Lived Well. He did an intake session in June 2021, but he did not attend any further appointments. He was also referred to Drug Arm in April 2021, but that agency was unable to make contact with him. In March 2021, he tested positive for methylamphetamines, amphetamines and benzodiazepines.[20]

   [20] R2, page 81.

10. In May and June 2021, on multiple occasions he entered the premises of The Endeavour Foundation, which is a not-for-profit charity that helps disabled people and collects donated items such as mobile phones, electronic tablets and laptops to help less fortunate members of the community. He stole a total of 14 mobile phones, nine hard drives, one GPS device, 19 electronic tablets and 15 laptop computers from storage bags. He told the police that he stole property to sell it to others for money.[21] He told the Tribunal he did not know whose premises it was. He was remanded in custody in July 2021 and his parole was suspended.[22] In December 2021, he was given a total effective sentence of two years imprisonment for the May and June 2021 offences.

    [21] R2, pages 130 to 131.

    [22] R2, page 516.

11. From 2017 to 2021, the Applicant was given the benefit of non-custodial sentences, including probation, community service and suspended sentences, all of which he breached. He was twice given court ordered parole and continued to offend. He spent periods on remand and serving sentences of imprisonment. While in custody he used drugs and broke rules by fighting with another prisoner (2018), diverting medication (January 2022), attempting to divert medication (April 2022), possessing prohibited articles including medication (including in March 2022), prison-made alcoholic brew (including in February and March 2022), a prison made syringe (March 2022), and prison-made cigarettes (January 2022), and running string lines between cells[23] (in August 2022). He explained to the Tribunal that stringlines were used to move “drugs or anything” between cells. He also admitted that he used Suboxone once per week during his last period of imprisonment.

    [23] R2, pages 227, 404, 455, 521, 539, 570, 575, 602 and 612.  

12. In the revocation request the Applicant made in August 2022, he said drugs played a “massive” role in his offending but that he had been “clean” for 14 months. He added that he realised he had to start changing. The Applicant had not been clean for 14 months at that time. In the hearing he clarified that he was referring to methamphetamine which he last used before he was incarcerated. The Applicant also said he had done two drug rehabilitation courses and that he wants to stay in Australia to look after his mother and have a relationship with his daughter.[24]

    [24] G14, pages 69 to 70.

13. The Applicant was granted parole to immigration detention in August 2022. In his parole application, he had expressed an intention to better himself, and he said he would engage with various drug rehabilitation supports including Narcotics Anonymous.[25] To date the Applicant has not engaged with Narcotics Anonymous although they hold online meetings and he has internet access in immigration detention, but he said he intends to if he is released. The Applicant admitted that while in immigration detention, he used Suboxone every day until a few months ago when he was put on a Suboxone program whereby he gets a prescribed long-lasting dose every four weeks (or three weeks if he needs his dose earlier). He said he does not experience cravings, and he has not used any other substances, since he has been on this program. He will seek to continue on that program if he is returned to the wider community.  

    [25] R2, pages 450 to 451.

14. On 24 December 2022, before he started the Suboxone program, the Applicant passed a package containing Suboxone and tramadol from one detainee to another. He told the Tribunal that he expected to be given a portion of the drugs. The Applicant has pleaded guilty to possessing dangerous drugs and “Offence to buy or possess s4 or s8 medicines or hazardous poisons”.  

15. On 27 December 2022, the Applicant picked up a package that had been thrown into his compound from another compound by another detainee. A search revealed two small packages concealed in his underwear. One contained methamphetamine. It does not appear that the other was opened at that time. Both were seized. The Applicant told the Tribunal he did not expect to get any of the drugs and that he did it because another detainee kept asking him to do it. He has pleaded guilty to possessing dangerous drugs.

16. The Applicant sentence will finish on 13 November 2023, which means he will no longer be subject to parole conditions and supervision after that date.  

    PC1: PROTECTION OF THE AUSTRALIAN COMMUNITY

17. Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. We should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. Serious conduct includes behaviour or conduct of concern that does not constitute a criminal offence.

18. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires us to give consideration to:

    a)The nature and seriousness of the Applicant’s conduct to date; and

    b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

19. When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, we must have regard to the following, relevantly:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)…;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)…;

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention…;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)…;

    (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    (h)…

20. The Applicant has frequently offended since 2017. The cumulative effects of his repeated offending include the circulation of dangerous drugs in the community, several victims suffering the loss of their property and a charitable organisation being repeatedly targeted, several members of the community feeling threatened and unsafe, and a great deal of the resources of the criminal justice system being spent on largely wasted efforts to stop the Applicant from offending.

21. The Applicant has committed crimes of violence which are considered very serious. He rammed a vehicle and threatened its occupants with a machete and a knife. His victims included children who were suddenly in a situation where their vehicle and father were under attack. Their car was immobilised by the Applicant on a highway off-ramp in the middle of the night. They could not escape. They had to watch their father face down a drug affected man wielding a machete with two other men behind him. The Applicant assaulted a council officer in the performance of his duties. Victims who are attacked in the performance of their duties often cannot avoid the activity or environment in which they were attacked without giving up their normal duties. Having to return to situations that evoke fear or stress, or having to make a choice between that and changing the nature of their employment, is an additional harm for these victims. The Direction stipulates that offending against a government official in the performance of their duty is serious.       

22. The Applicant committed offences after he was warned that further offending could result in his visa being cancelled. He also committed offences in immigration detention.  

23. While the Applicant was dealt with leniently for his offending for quite some time, he was eventually sentenced to periods of imprisonment of up to two years. These sentences reflect the seriousness of his offending and his consistently poor response to non-custodial sentences.   

24. The Applicant denied having been violent to Ms R and there is no evidence of direct physical violence against his mother. The Direction defines family violence to encompass more than physical violence. It includes threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful. The Applicant presented to his mother’s home in a rage, told her he wanted to hurt her and damaged her property. His behaviour induced fear. His mother is clearly a member of his family.

25. With respect to Ms R, even if we accept that the Applicant was not violent to her, he sent threatening messages to her, some of which were intended to coerce her to continue the relationship. The Direction gives stalking as an example of behaviour that can constitute family violence. The Applicant’s behaviour towards Ms R was akin to stalking. She de-activated all her social media solely to avoid contact from him. He caused her to do that, to make her life smaller and less connected to her community to avoid him. It was not the outcome he was trying to force from Ms R, but it was an outcome he did force. We are satisfied that the Applicant exerted control in that way. It is also reasonable to infer that the messages he sent caused her to be fearful of him as they contained threats. We find that his conduct in sending messages to Ms R constituted family violence. The Direction defines “member of the person’s family” to include a person who has, or has had, an intimate personal relationship with the relevant person. Ms R, having been the Applicant’s girlfriend, and being the mother of his child, is a member of his family for the purpose of the Direction. We are satisfied that the Applicant committed acts of family violence against Ms R and his mother.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

26. According to paragraph 8.1.2(1) of the Direction, in considering the risk to the Australian community, we should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

27. In accordance with paragraph 8.1.2(2), we must have regard to the following relevant factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.

28. The nature of harm to the community from future offending can be reasonably predicted by considering the types of offences the Applicant has already committed. He has engaged in aggressive, violent behaviour under the influence of drugs. He tends to carry weapons with him and he has brandished weapons. The potential harm from future acts of aggression and violence, particularly where the Applicant is drug affected and has a weapon readily available, is very serious and includes serious physical injury and psychological trauma.

29. The harm from driving under the influence of drugs, swerving across lanes to avoid being passed or from chasing and ramming other vehicles includes serious physical injury and death as well as substantial property damage.

30. The harm from entering people’s properties and stealing or damaging property, or dealing in stolen goods, includes financial loss, and loss of property that has sentimental or other value. There is an additional harm when the victim is left with a property that is not secure due to locks, doors etc being broken,, and the feeling of vulnerability and violation people typically feel after an intruder has been in their property. These are harms that will be visited upon countless members of the community if the Applicant returns to drug use and commits crimes to fund his drug use, as he previously has.  

31. We have earlier mentioned the harm from circulating cannabis in the community.         

32. We now turn to consider the risk of further offending. In January 2018, the Applicant was assessed by Corrective Services as having a Risk of Re-Offending Assessment score of 11/20 which indicated a moderate risk of re-offending.[26] He engaged in serious offending within three months of that moderate assessment, and he went on to commit many more offences. The Tribunal does not have the benefit of a recent psychological opinion about the likelihood that the Applicant will re-offend. However, the risk of relapse into drug use and consequential offending can be estimated from other evidence. 

    [26] R2, pages 562 to 569.

33. The Applicant has a long history of problematic use of dangerous drugs and prescription medication which has led to crime and family violence. He has said, and it is readily apparent, that drug addiction was a major contributing factor in his offending. In his 2020 revocation request he referred to sustaining a brain injury from being hit with a baseball bat and said he was getting help for brain trauma.[27] We will address this in more detail under Other Consideration (b) but for present purposes, the Applicant gave evidence that he has not been diagnosed with, or treated for, a brain injury.      

    [27] R2, page 13.

34. While the Applicant has been found with prison-made alcohol and medication that was not prescribed since being remanded in custody in July 2021, we are prepared to accept his evidence that he has not used methamphetamine in that period. We are also prepared to accept that he has not used illicit or non-prescribed substances since starting the Suboxone program. In June 2022, the Applicant completed a short substance intervention course and in September 2022 he completed a Low Intensity Substance Intervention course.[28] However, having completed both courses, in December 2022, he was caught handling Suboxone and tramadol, and later methamphetamine, with the expectation that he would partake in the Suboxone. He said he handled the methamphetamine simply because he was asked to even though he knew it was wrong to do that. This is very concerning, especially given his history of having difficulty saying no to friends. He said he thinks he is improving in this regard as he has refused requests recently, but he has not done any targeted assertiveness courses or counselling on that particular issue. The Applicant recently engaged in a stress management course, and he has started a “Do It” drug and alcohol program though Lives Lived Well.[29] He sees a mental health nurse every fortnight in detention.   

    [28] R2, pages 522, 621 to 622.

    [29] A1.

35. The Applicant claims that he will stay on the Suboxone program in the community and he will engage in rehabilitative programs. He also intends to go to drug counselling through Lives Lived Well in the community although he has not yet made any arrangements to do that. He could have already engaged with Narcotics Anonymous but he has not. Further, he has a very poor history of engaging in rehabilitative programs. When his visa was cancelled the first time, he expressed commitment to reform, yet he did not follow through on that in the long term. He will only be under the supervision of parole until November 2023, and in any event, being on parole in the past did not stop him using drugs and offending. Nor did being on probation or having the threat of a suspended sentence or deportation hanging over his head.

1. With respect to many of the episodes of criminal conduct or family violence, the Applicant acted alone or was the main instigator, so it is not that case that he gets led into that sort of behaviour. However, we accept that his drug use, which precipitates that sort of behaviour, is very much connected to the company he keeps. The Applicant expressed an intention to avoid former associates by not returning to the Redcliffe area where he previously lived with his mother. However, he believes that if he is unable to secure accommodation, he would be able to live with his mother. He thinks he can avoid bad associates in Redcliffe or elsewhere by getting a job, probably in tiling or as a mechanic as he has worked as a tiler and he is able to fix and service cars. Still, he has for many years gravitated towards and associated with people who are involved in drugs and crime and we think it will be very challenging for him to avoid that crowd and that lifestyle in the long term.

2. We accept that despite the past family violence, the Protection Order, and the absence of any evidence from the Applicant’s mother, she is supportive of the Applicant and will assist him by taking him to counselling appointments and being someone he can talk to when he is stressed, as he currently does. However, he has previously used drugs while living with her, including in her home, and she was not aware of that. We do not consider her to be a strong protective factor.  

3. According to Corrective Services file notes, made on 5 March 2020, the Applicant indicated that he was engaged with a psychologist to address his drug use, mental health and domestic violence behaviour.[30] There is no further reference to this in the notes or in any evidence put forward by the Applicant, so it is not apparent how much focus there was on domestic violence and what, if anything, was achieved. We note that there is no evidence of the Applicant engaging in family violence after that date. The Applicant’s evidence about the family violence that he admitted to did not show much insight into the harmful effects of that sort of behaviour. We are not satisfied that there is no longer a risk of engaging in that sort of behaviour especially if affected by drugs. While the Applicant said in his revocation requests that he realised the impacts of his offending, his evidence in the hearing did not reveal much genuine insight, with respect to the causes and impacts, of his offending in general.        

   [30] R2, page 271.

4. We have no doubt that the Applicant is sincere in his wish to avoid deportation, however he was similarly motivated the last time his visa was cancelled and he still ended up re-offending after some time. The Applicant does not strike us as a person who intends to do harm, but that is what he does when he is using drugs. For the reasons we have given, we are not confident that he will engage and stay engaged with the rehabilitative programs and supports that he needs in the community. Unfortunately, we find that there is a high risk that he will return to the lifestyle that he lived when he was in the community which will include drug related crime of the kind in which he previously engaged.

5. Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.

   PC2: FAMILY VIOLENCE

6. In addition to family violence being relevant to the Primary Consideration 1, the Direction devotes another Primary Consideration solely to family violence. Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen. Under Primary Consideration 2, we are not only to consider family violence that is the subject of a conviction. We are to consider information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, where the non-citizen has been afforded procedural fairness.

7. We are also to consider, relevantly, any rehabilitation achieved in relation to family violence including the extent to which the Applicant accepts responsibility for his family violence related conduct, the extent to which he understands the impact of his behaviour on the abused, and efforts to address factors which contributed to his conduct. As stated above there is very little information before us about the extent to which the Applicant has undertaken rehabilitation for family violence and we consider that his insight into his past family violence conduct is limited.  

8. We consider that the factors relevant to family violence amplify the weight allocated against revocation of the cancellation of the Applicant’s visa.

   PC3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

9. As to this primary consideration, the Direction at 8.3 requires the decision-maker to have regard to the strength, nature and duration of the Applicant’s ties to Australia.

10. The Applicant has lived in Australia for almost 16 years having arrived in Australia in 6 July 2007. We accept that this period included some of his formative years.

11. In terms of positive contribution to the community, the Applicant has engaged in limited gainful employment and, while he once signed up to assist in a Bunnings Barbeque, that did not end up occurring and he has not done any other voluntary work. It was the Applicant’s evidence under examination that he has not played sport and/or engaged with any sporting and/or any other social clubs and organisations in Australia. It was also apparent from the Applicant’s evidence that he has as an adult a small group of friends and/or acquaintances with whom his connection has been through the illicit drug scene.

12. On the material before the Tribunal the Tribunal finds that the Applicant’s mother and his daughter are immediate Family members and Australian citizens.

13. The Applicant’s evidence including the material he has filed was to the effect that he seeks the revocation of the cancellation of his visa in part so he can look after his mother who is alone in Australia. The Applicant does not know who his biological father is, and his mother’s relationship with his step-father ended when he was around 17 years old. He did not grow up with any siblings. The Tribunal acknowledges that his mother is the only family he has in his life and that that therefore his relationship with her is a strong tie to Australia. The Applicant indicated that he assisted his mother when he was in the community by tending to her yard and using his skills as a mechanic. His evidence was that he has no contact or relationship with his former step-father and that his mother would not be inclined to relocate from Australia to the United Kingdom in the event his visa was cancelled and he was returned to the United Kingdom. However, under examination by the Department and the Tribunal it was the Applicant’s evidence that he was unaware of any impediment that would restrict his mother from visiting him in the United Kingdom.[31]

    [31] His written material contained an assertion that she lost her United Kingdom citizenship when she gained Australian citizenship but in the hearing the Applicant conceded that this was merely an assumption he had made.

14. In consideration of the Applicant’s evidence as to his relationship with his mother and the Corrective Services’ notes that were produced under summons, the Tribunal finds that notwithstanding a Protection Order having been made naming his mother as an aggrieved against him together with his evidence before the Tribunal that he had made threats to harm his mother, that he has had and does maintain a positive relationship with his mother. In that regard the Tribunal notes the Applicant’s evidence that his mother had assisted him with his application to have the cancellation of his visa revoked.

15. However, the Tribunal also notes that there was no evidence from the Applicant’s mother before the Tribunal as to their relationship, how she would be affected if the Applicant was returned to the United Kingdom and/or her ability to or willingness to accommodate the Applicant at her home in the future if he remained in Australia and was released from detention and/or any future period of imprisonment.

16. The Tribunal finds that the Applicant’s mother is likely to suffer a negative impact by way of emotional hardship if the Applicant is removed from Australia.

17. The Applicant’s daughter is an Australian citizen, five years of age, who resides with and his cared for by her mother. There is an active Protection Order in place until 23 June 2025 prohibiting the Applicant approaching and/or having any contact with Ms R.

18. It was the Applicant’s evidence that he sought to remain in Australia as his daughter was dependant upon him. However, under examination from the Tribunal it was his evidence that he had not seen his daughter or had any contact with his daughter since 2018. Under further examination it was the Applicant’s evidence that he has never provided any financial or other assistance to his daughter’s mother for his daughter’s care and that if he returned to illicit drug use and/or the illicit drug scene that would not be in the best interests of his daughter.

19. The Tribunal also finds that the Applicant has not had any contact either directly and/or indirectly with his daughter since she was six months of age and has thus been absent from contact with her for most of her life.

20. The Tribunal has also considered the possibility of the Applicant’s daughter later in her life seeking to make contact with the Applicant to pursue a relationship with him and has considered the availability of contact means such as telephone, video calling and other social media forums which would allow and facilitate such contact if she so desires that contact. Further the Tribunal is not aware of any impediment to the Applicant’s daughter being able to travel to the United Kingdom in the future to visit the Applicant and/or pursue a relationship with the Applicant if she desires to do so.

21. In considering the impact of the decision on the Applicant’s immediate family members in Australia the Tribunal finds for the reasons above, that this Primary Consideration weighs moderately in favour of revocation.

    PC4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

22. Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), we must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    ·     whether there are other persons who already fulfil a parental role in relation to the child; and

    ·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen.

23. As identified above the Applicant is the biological father of a five-year old child (daughter) who he claims is very dependent upon him given her age and the fact that she is just about to start school. However, it was the Applicant’s evidence under examination as outlined above that he had not seen his daughter or had any contact with his daughter directly and/or indirectly since 2018. Therefore, the Applicant has not seen his daughter since she was a one-year old infant and at least four years have now elapsed since his last contact with his daughter.

24. There is no evidence before the Tribunal from Ms R about how the visa cancellation has, or is likely to, affect Child A. Given the evidence before the Tribunal including the Applicant’s oral evidence it is apparent that Ms R has not sought any contact with the Applicant or made any attempts to contact the Applicant to facilitate and/or discuss any future contact between the Applicant and Child A. There is as identified above an active Protection Order in place until 23 June 2025 which prohibits the Applicant from approaching and/or having any contact directly and/or indirectly with Ms R. The tribunal also notes that the Applicant does not have nor is there any evidence before the Tribunal that he has sought any contact orders through the Federal Circuit and Family Court of Australia to facilitate any contact with his daughter. It was also the Applicant’s evidence that he has never provided any financial assistance to Ms R in relation to the maintenance of Child A.

25. As to the Applicant’s prior and likely future conduct the Applicant as identified above has a long and extended history of illicit drug use and at times as evidenced by both his criminal history and his oral evidence at the hearing been involved in the use of and supply of illicit drugs and the illicit drug scene in the Redcliffe area of Queensland. It was the Applicant’s evidence under examination that if he was to return to drug use and the illicit drug scene that that would not be in the best interests of his daughter.

26. In that regard, the Tribunal notes that the Applicant’s evidence was that notwithstanding his claims of being drug (illicit) free that he has had a history of using illicit drugs and/or being involved in illicit drugs whilst in Immigration detention, imprisonment, subject to parole and/or probation and whilst either voluntarily or subject to orders completing drug rehabilitation and other related courses. As indicated above, the Tribunal is not satisfied that if the Applicant was released into the Australian community, he would not return to illicit drug use and the illicit drug scene. The Tribunal finds that such a likely return to illicit drug use and the illicit drug scene by the Applicant would not be in the best interests of his daughter.

27. Given the extensive absence from the Applicant from his daughter’s life the Tribunal is not satisfied that in the short term there would be a negative impact upon his daughter arising from their lack of contact and interaction.

28. As to the longer term it is acknowledged by the Tribunal that the Applicant’s daughter may seek to renew contact with him as she grows older and gains her ultimate adult independence from her mother. However, as discussed above, the Applicant’s daughter would be able to in her later life to make contact with the Applicant to pursue a relationship with him given the availability of contact means such as telephone, video calling and other social media forums which would allow such contact.

29. Given the Applicant’s absence from his daughter’s life and that her care needs to date have been met by her mother it is clear that the Applicant has not played a parental role with his daughter for at least the past four years, and it seems unlikely that his daughter has any real meaningful recollection of the Applicant. Additionally, there was no evidence before the Tribunal as to the Applicant’s daughter’s views which given her age, the absence of time since she has seen the Applicant together with the existence of the Protection Order having been in place since 2018 is unremarkable.

30. We note that in evidence before the Tribunal the Applicant did not accept the allegations made by Ms R in her application for the current Protection Order in so far as he had assaulted her and pushed her down a flight of stairs. The Tribunal though is cognisant of the Applicant in his evidence accepting that he had threatened Ms R whilst adversely affected by illicit drugs. The Tribunal finds that Child A  would be in the future at risk of being exposed to family violence in some form and to illicit drug use and/or the drug-affected behaviour of the Applicant if he was to be returned to the Australian community and in the future had contact with her notwithstanding that there was no evidence before the Tribunal of her actually suffering or having experienced such harm in the past.

31. Given all of the concerns outlined above, the Tribunal is unable to allocate any weight under this Primary Consideration in favour of revoking the cancellation.

    PC 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

32. Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.

33. Paragraph 8.4(2) of the Direction directs that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they raise serious character concerns through conduct that includes (relevantly) acts of family violence and the commission of serious crimes against government representatives or officials in the performance of their duties.

34. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

35. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.

36. The Applicant has engaged in serious conduct, and that conduct includes conduct that raises serious character concerns including acts of family violence and the commission of serious crimes against a government representative in the performance of his duty. He has committed other serious offences and he has repeatedly breached the trust of the Australian community by continuing to offend while subject to community-based orders and parole. His repeated offending conduct, including conduct that causes or creates a risk of harm, demonstrates a disregard for the laws regulating the community that he seeks to re-enter and for the safety and well-being of people within that community.

37. This Primary Consideration weighs against revocation of the cancellation of the Applicant’s visa to a substantial degree.   

    OTHER CONSIDERATIONS

38. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

    OC(a): Legal consequences of the decision

39. The legal consequences of a non-revocation decision are that the Applicant will be removed to the United Kingdom as soon as reasonably practicable in accordance with s 198 of the Act. The Applicant has not raised any protections claims or other matters that might interrupt his deportation and none arise on the evidence. This consideration is neutral.

    OC(b): Extent of Impediments if Removed

1. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)the non-citizen’s age and health;

   (b)whether there are any substantial language or cultural barriers; and

   (c)any social, medical and/or economic support available to that non-citizen in that country.

2. The Applicant expressed concern that if returned to England he would have no moral support and could face homelessness.[32] As to this consideration the Tribunal notes that the Applicant is a reasonably young man, being 28 years of age and there was no evidence placed before the Tribunal to suggest that he could not obtain employment in the United Kingdom or that he would be excluded from accessing publicly available Social Security payments and public health care. As a citizen of the United Kingdom, the Applicant would have the same access to social, medical, mental health support and economic support as other citizens. He is able bodied and has skills in tiling and fixing cars, so he has some income earning potential.

   [32] G3, page 67.

3. It was the Applicant’s evidence at the hearing that he recently discovered that his mother has children in the United Kingdom from whom she is estranged. They are older than the Applicant. Ms R found out he had a sister and contacted her. His sister then contacted him through Facebook. He has communicated with her via Facebook once or twice. He said he would probably contact his sister if he was sent back to the United Kingdom. That opens up some potential for both moral support and practical assistance in transitioning to life in the United Kingdom. Further, the Applicant said he thought his mother “maybe” could send him some money to help him get settled if he had to return to the United Kingdom.

4. The Applicant did not declare any physical health problems, although there is mention in the Corrective Services notes around 2021 that he was on medication for Hepatitis C. The Applicant did assert that he had a brain injury and a diagnosis of schizophrenia.

5. In the Applicant’s 2020 revocation request, he referred to having suffered a brain injury when he was hit with a baseball bat, and he said he was getting help for brain trauma.[33] He gave evidence that he noticed a deterioration in his mental health after that attack. There is a letter from the Redcliffe Hospital Emergency Department dated in August 2019, indicating that the Applicant attended complaining of fluid in his hands and feet and sores on his face and neck, and he said he had been hit on the head with a baseball bat in July. A diagnosis of Impetigo was recorded but there is no mention of any investigation into a brain injury. The letter records that the Applicant presented as vague, withdrawn and paranoid, and noted a concern about a possible underlying psychotic disorder such as schizophrenia or drug-induced psychosis.[34] We note that the Applicant was offending frequently in May and June 2021, which may indicate increased illicit drug use by the Applicant in the weeks before he was hit with a baseball bat, which in turn could explain a deterioration in his mental health.

   [33] R2, page 13.

   [34] R2, page 377.

6. In the hearing the Applicant recalled that he went to hospital five days after sustaining the head injury and they washed it out. He was told that X-rays showed a tiny bleed which was not serious. The mental health problems he referred to after the attack were worsening paranoia and hearing voices and seeing things. He did not seek professional help. His mother tried to get him into a mental health ward but they discharged him. He conceded that he was using more drugs at the time and his paranoia occurred when he was using methamphetamine.

7. The Applicant’s 2020 revocation request includes, under health information, “Paranoid Schizophrenia - diagnosed at Redcliffe Hospital 2019” and there are a few records in the Corrective Services after that date that mention that the Applicant said he had been diagnosed with schizophrenia. In the hearing he said his doctor put him on Seroquel after his attendance at Redcliffe Hospital. The Corrective Services notes mention that the Applicant reported taking anti-psychotic medication such as Seroquel and attending a mental health unit. According to the Applicant, schizophrenia runs in his family as is mother’s brother, who is now deceased, suffered from it. 

8. However, the mention of possible schizophrenia in the letter from Redcliffe Hospital is not a diagnosis. Further while the Applicant had said in his written materials that he had suffered from mental health issues since childhood, in the hearing he said he had not had any experiences that he would see as indicating mental problems until he started taking drugs.

   Further, the risk assessment that was conducted in April 2018 noted no mental health concerns.

9. There is no evidence before the Tribunal of the Applicant exhibiting symptoms of a florid phase of schizophrenia before he reportedly started taking methamphetamine (or after). The evidence before us suggests a link between the Applicant’s drug use and deterioration in his mental state. We are not satisfied, on the evidence, that the Applicant suffers from schizophrenia as opposed to having experienced periods of drug-induced psychosis, however we accept that he takes medication, which has included anti-psychotic medication at times, to manage his mental health. He currently takes prescribed Suboxone to assist him to abstain from other substances. We are satisfied that he will continue to need pharmacological assistance for his mental health and predisposition to drug dependency. We are also satisfied that from time to time he may need medication for Hepatitis C. As a citizen of the United Kingdom, he will have the same access to the National Health System as other citizens. Further, he will have access to Narcotics Anonymous which is free and exists in physical locations and online. We have found that it is likely that the Applicant will revert to substance abuse in the wider community. That, in turn, is likely to adversely impact his mental health and his ability to maintain employment and stable accommodation.        

10. The Applicant spent his first 12 years in England and he speaks English. The United Kingdom is culturally, linguistically and politically similar to Australia. If returned to the United Kingdom, the Applicant would not face any substantial language or cultural barries notwithstanding his difficulty with reading. It is recognised by the Tribunal that his reading and writing difficulties may pose an impediment to him seeking out and finding employment and access to social service benefits and assistance initially until he makes direct and personal contact with Government service providers and organisations in the United Kingdom. That said, the Tribunal notes that his sister may be able to assist him. Therefore, the Tribunal is satisfied that the Applicant would be able to avail himself of some support from his sister and her family in the United Kingdom to the extent of ameliorating some of the difficulties he would likely face due to his poor reading and writing skills if he was returned to the United Kingdom.

11. This Other Consideration (b) weighs moderately in favour of revocation of the mandatory cancellation.

    OC(c): Impact on victims

12. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration is therefore not

    OC(d): Impact on Australian business interests

13. Pursuant to paragraph 9.4 of Direction 99, the Tribunal must consider any impact on Australian business interests of a decision to affirm the reviewable decision. The Applicant made no claims relevant to this consideration and none arise on the evidence. This consideration is neutral.

    CONCLUSION

14. The Tribunal has allocated weight in the Applicant’s favour on the basis of his ties to the Australian community (a Primary Consideration) and the impediments he is likely to face if removed to the United Kingdom (an Other Consideration). However, the combined weight we have allocated for those considerations is not enough for us to find that there is another reason to revoke the cancellation of the Applicant’s visa. That is because of the nature and seriousness of the Applicant’s offending (and other serious conduct) and the likelihood that, if his visa is returned to him, he will continue to commit offences that carry a very real risk of causing serious harm in the community. The weight that we allocate under Primary Consideration 1 against revocation of the visa cancellation is amplified by his commission of family violence (Primary Consideration 2) and his failure to adhere to the expectations of the Australian community as prescribed in Primary Consideration 5.      

15. Consequently, we cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

    The decision under review is affirmed

I certify that the preceding 126 (one-hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D James and Senior Member R Bellamy

........................[SGD]..........................

Associate

Dated: 23 May 2023

Date of hearing:	9 May 2023
Applicant:	In person
Solicitor for the Respondent	Chris West (Sparke Helmore)

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
Tr1	Section 501 – G Documents (140 pages)	R	-	10/03/2023
A1	Applicant’s stress management workbook (17 pages)	A	-	07/04/2023
A2	Certificate of completion of LISI 24hr Explore Program	A	15/09/2022	19/04/2023
R1	Respondent’s Statement of Facts, Issues and Contentions (21 pages)	R	21/04/2023	21/04/2023
R2	Respondent’s Tender Bundle (629 pages)	R	-	21/04/2023
R3	Applicant’s personal circumstances form (7 pages)	R	-	19/04/2023
R4	Verdict and judgement record (1 page)	R	-	08/05/2023